Privacy Trumps Access, And It Ain't Cheap

Although Congress vastly underestimated the cost of implementing FOIA, it clearly understood that cost was not to be an obstacle to access.

Jim Warren, my predecessor, recently warned that language approved in a proposal for final adoption by the California Senate Task Force on Electronic Access to Public Records would allow state and local agencies to recoup "all" costs related to providing access to electronic information. The proposed language will allow agencies to charge the "actual cost of providing the record, which may include the costs of search, retrieval, review, segregation, and duplication." While drafting legislation frequently involves matters of semantics, "actual costs" does not have the same meaning as "marginal costs," the phrase that has been commonly used in access policy. While "marginal costs" means charging only for duplication and search, and perhaps review time and mailing costs, "actual costs" can factor in all costs associated with furnishing the information. Besides those already mentioned, this includes overhead costs such as utilities and salary benefits. Potentially, the gap between "marginal" and "actual" could be tremendous.

Whose Wallet Will Open?

Fights about access costs have always centered on the issue of who should pay. The federal Freedom of Information Act (FOIA), and most other access statutes, already answered that question when the statutes were originally drafted and passed -- it is the government that pays in the form of subsidizing the actual costs, not the requester. The philosophical basis for placing the cost burden on government is that government information belongs to the people, who have a right of access restricted only by the various statutes' exemptions. Although Congress vastly underestimated the cost of implementing FOIA, it clearly understood that cost was not to be an obstacle to access. Even the agencies understood this, and in the early years of implementation, the inability to pay was a perfectly acceptable basis for waiving fees. Congress has backed away from this principle only once -- in 1986 -- when it allowed extra charges, particularly review time, to be levied against "commercial" users.

What Will the Market Bear?

But the debate on information policy has moved from being seen as a government obligation to citizens -- allowing them to make use of government information -- to one of viewing government information as a commodity with varying degrees of market value. With the new viewpoint, government information is a precious resource to be safeguarded and parceled out only at prices that bear some realistic resemblance to the costs associated with the information -- including such items as collection and maintenance of the information. Under this approach to information policy, government information is a revenue source to be sold based on its market value.

Most government information isn't worth much in terms of dollars because there is no particular demand for it. But one of the conundrums of the electronic age may be that, while bits and pieces of information by themselves are virtually worthless in a market sense, that same information aggregated in databases may be worth considerably more. A small list of names and office addresses may be worth very little, but a database filled with the same type of information may have far greater potential value to marketers or list brokers. A reasonably detailed city map might be worth a few dollars, but the same map in database form, with all the added layers of information possible in a GIS system, may be worth thousands or tens of thousands.

A Precarious Balancing Act

While pure cost has been the battleground so far, Warren's warning elicited a response that should give a dedicated access advocate the chills. One of the members of the Senate Task Force, Palo Alto City Attorney Ariel Pierre Calonne, replied that the reason electronic access would cost so much in California was the constitutional obligation to protect privacy. To many access advocates, lumping cost and privacy together is like fighting your two worst enemies simultaneously.

Calonne has been a very articulate and thoughtful commentator on issues of both cost and privacy; but as a city attorney, he looks at these issues in part as to how they will affect local government -- and he doesn't like what he sees. He told Warren, and other subscribers to the listserver on which this discussion took place, "the 'people' who really want e-access to public records are the commercial information vendors. Why? There is a huge market for cradle-to-grave dossiers about you and me that prospective employers, creditors, investigators and even Safeway would love to have."

In mentioning Safeway, Calonne referred to an incident in which Safeway obtained a list of names and addresses of people who parked their cars in the lot of a rival supermarket. He added that "the snoop industry representatives said that Safeway was motivated by environmental concerns -- it wanted to build a market closer to all those poor folks who had to drive so far to its competitor's store!"

Explaining how privacy related to the cost equation, Calonne noted that "forcing subsidized access to massive electronic databases with personal information will lead to irreparable privacy invasions." Continuing, he pointed out that "recovering the full cost of responding to e-access requests is needed to insure that our constitutional rights are protected."

Calonne also makes a very interesting point in observing that local government usually does not have the money or the manpower to cleanse databases of personal information. Based on last year's congressional passage of the EFOIA (Electronic Freedom of Information Act) amendments, he apparently thinks the federal government does have the money. That seems unlikely. What is more likely the case, is that Congress was willing to make the legislative judgment that government information should be as available in electronic form as it is in paper. One of the bedrock principles of electronic access is that format should not dictate the availability of information. In other words, if the information is available on paper, the fact that it is in electronic form should not be an obstacle to its availability.

Calonne is correct in observing that smaller city and municipal governments are less likely to have full-time computer staff who can resolve the problems of sanitizing electronic records because of privacy concerns. But legislatures frequently tell agencies to accomplish some task without providing adequate funding and that is just as true on the federal and state level as it is on the city and local level. The fact of the matter is that by passing electronic updates to public records statutes, legislatures are instructing government to provide access to such records on basically the same terms as currently exist for paper records. Legislatures are notoriously lax at providing specifics on how such goals can reasonably be achieved.

Mike Gordon, a television news producer in Toronto, replied to Calonne's message by pointing out what he believed was a basic fallacy in Calonne's argument. Interpreting Calonne's message as meaning that appropriately sanitizing records for privacy concerns was substantially more expensive than for paper records, Gordon said he disagreed with the proposition that "somehow redacting computer records is more difficult/open to error/costly than taking markers and scissors to paper records. In my experience, this is simply not true. Often, all the public organization has to do is delete a field or three in a database. Once the fields containing protected information are deleted, the database, is fully 'public'. Compare that to the hours spent going through papers, sheet by sheet. If the public body has elected to hold its computerized records in some way that makes redaction wildly more complicated, then the public body should address its record-keeping system."

The move to maintain and collect more government information in electronic form continues and it seems more likely that almost all records will at some time become electronic. Assuming that society continues to value the right of access to government information -- a right that, to me, is tinged with more federal constitutional implications than the right of informational privacy -- the real problems of balancing access and privacy will have to be faced and resolved in an electronic world. To pull the plug on electronic access because of short-term cost considerations, even if driven by sincere concerns about privacy, is almost sure to have unfortunate long-term consequences.

Harry Hammitt is editor/publisher of Access Reports, a newsletter published in Lynchburg, Va., covering open government laws and information policy issues.E-mail: <75111.743@compuserve.com>.